October 2010

For the third installment of my open-ended series on creator contracts, I want to talk about two important parts of most creator contracts that often get lumped together into one section: term and termination. My working theory is that “term” is the first syllable of “termination,” although I’m still doing research on the subject. Whatever the reason, these two things are not the same, and they’re each crucially crucial in their own right. “Term” in the contractual context refers to the planned length of a contract (a year, six months, whatever) and “termination” covers the ways the contract can be ended by either party before the term is up.

Let’s hit term first. Term can be any length, and there’s no “right” length. It just depends on how long the parties want to be tied together through the contract. The length of a contract is really a business term, so when you’re thinking about how long a contract should be, put your business hat on and think about it as practically as you can. This is especially true with respect to rights contracts, and more particularly licenses. For example, let’s say you license your finished comic to a publisher, and you give them the rights to print it, market it, use parts of it in promotional activities, maybe even make t-shirts or other merchandise, all in return for some percentage of revenues (the cash it makes.) The expectation when you grant the license is that they will actually DO those things, and they will continue to do those things as long as the comic makes money. But what if it doesn’t, or if the publisher doesn’t do a particularly good job of using the property? What if they don’t do anything with it at all? In those cases, you might want to know that the rights will revert back to you after a certain period of time – the end of the term. Some licenses have “perpetual” terms, and those can be ugly – unless they have a good termination clause, which we’ll talk about in a minute. A perpetual license means the person you’re licensing your work to has rights to it forever. In the indie comics world, I would read contracts with perpetual license terms very carefully.

Now, that’s not true for a work-for-hire contract, or a sales contract, where one artist is selling their work to another for an up-front fee. In that case, the term of the contract is by definition perpetual. For example, if you buy a car, the person you sold it to can’t come up to you a few years later and ask for it back. The deal is done, and that’s that. There are sometimes good reasons to provide your work to a third party as a sale as opposed to a license – the price might be right, for one thing.

On to termination. Termination is the way the contract gets cancelled if things go wrong. Sometimes the termination provisions are conditional (“if THIS specific bad thing happens, the contract can be ended”) or they’re tied to time (“either party can terminate the contract at any time upon 90 days written notice to the other party.”) They don’t have to be mutual – the person on one side might have the right to terminate under certain conditions, and the other might be able to do it in completely different situations, or on different timelines.

The most common reasons a termination provision would kick in within the comics context would probably be if someone isn’t getting paid when they’re supposed to be, if someone isn’t doing what they’re supposed to be doing (such as publishing a book, or providing art on time, etc.) or if someone goes out of business. This last point can be very important. It’s a sad fact that comics publishers go under all the time. Let’s say you’re a creator with a project at Publisher A, and that company goes out of business. Unless your contract has a termination provision in case of bankruptcy, the rights to the project remain an asset of Publisher A, and they can sell them to Publisher B – some company you have no relationship with, and might not have wanted to work with in the first place.

So, there’s your summary of the way term and termination work in creator contracts. No contract you sign (or write, you aspiring legal drafters out there) should be silent on either point. Like I said in the first chapter, contracts are about everyone knowing where they stand at all times, and not just at the beginning, when everyone’s hoping for the best. Knowing what happens when things go to hell is at least as important – if not more!

Next time… work for hire. It’s a topic that has some negative associations, but like everything else in law, it can help or it can hurt – just depends on how it’s used.

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Hell, I wouldn’t be surprised if I get a C&D letter just for posting this. Assuming it does stay up, though, I’m looking forward to hearing where people think it went in the original book, once it’s out – only about three and half weeks to go!

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Well, I’m glad to have that behind me, to be honest. New York Comicon, or NYCC, is a massive endeavor, both to prepare for and to experience. As I mentioned in the last post, I had a good number of signings scattered throughout the weekend, which were wonderful in that I was able to talk about my books (both in existence and upcoming), meet fans, run into old friends who walked by the table, etc. Shadowline (the Image imprint publishing 27) and Indie Spinner Rack were fabulous hosts, and my only regret is that I didn’t take more pictures.

The other side of any con (or at least cons for me these days) is networking. Seemingly just about everyone in the business came out to New York (I know that’s not true, but it felt like it), and so it was a great chance to meet and re-meet folks who I might get a chance to work with one day, if all goes well. It’s always something of a tricky balance – you have to know, or intuit, the right way to approach and talk to people at cons. Editors are always busy at cons, and they’re also always being preyed upon by creators looking for work. My rule with editor conversations is to keep them VERY short and sweet, unless they give you an opening that suggests they’re up for talking a bit more. The idea is to make just enough of an impression that you can follow up with an email later and they’ll remember who you are. (Which reminds me, I have to start getting my con follow-up emails out!) So, that’s editors. Creators, on the other hand, are always up for conversations. Everyone wants to talk about what they’re up to – which is usually fantastic stuff. As I’ve continued to work in this weird/awesome business, it’s been my extreme pleasure to meet and in many cases become friends with talents so extraordinary that their brilliance blows my hair back. Creators gossip, too, which is fun.

Also had some solid conversations with some press folks, but if there’s one area in which I feel like I screwed up the con, it’s that. While I hung out with some great guys in the comics press, including Josh Flanagan from iFanboy, Charlito from Indie Spinner Rack (link above), and Brett Schenker from Graphic Policy , I didn’t network the press guys like maybe I could have, and with a book in Previews right now (that’s 27 Issue 1, for those who don’t know), I should have tried to set up interviews and so on. Ah well. I did okay.

One issue with all that networking, I didn’t have a ton of time to actually walk the floor. There are whole sections I never got to see, and while I bought some books I’m very excited about, I didn’t get much else. The merch selection at the big cons is usually pretty amazing, so it’s a shame to have missed it. Next time, I suppose. Oh, another negative – it was insanely crowded. Getting from one place to another took forever. That’s probably why I didn’t walk the floor as much as I ordinarily might have. On balance, though, it was a great time.

I’ve posted before about my occasional tradition of getting artists I know to draw Tigre, the main character from my Strongman series. NYCC garnered me a killer new sketch from Rodin Esquejo, the fantastic cover artist for Nick Spencer and Joe Eisma’s Morning Glories series, which I have the great pleasure of posting here:

Tigre, by Rodin Esquejo!

I also realized that I never posted another Tigre I got, from the wonderful Bobby Timony of Night Owls fame. He drew this for me at C2E2 in Chicago last April. However, I hung out with him a fair amount at NYCC, so I think it counts. Enjoy:

Tigre, by Bobby Timony!

And that’s that! I am hoping to be able to have some great things to announce soon – as I said, it was a productive weekend. In the meantime, though, onward towards the 27 release date – less than a month away!

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This will be quick, since I have to head out the door in a few minutes to head over to the 2010 New York Comicon, but I have some great signings set up that I wanted to post in case anyone feels like saying hello.

Friday:

4-5 – Shadowline table (O-2) with con-exclusive 27-related items, including all four issues of the book!

5-7 – Indie Spinner Rack table (booth 425) – I’ll have materials from Strongman 1 and 2, as well as some of the 27 stuff as well.

Saturday:

3-4 – Shadowline (with cover artist Scott Forbes!)

5-7 – Indie Spinner Rack

Sunday:

11-12 – Shadowline

I’ll be around for most of the day Friday, from about 3 on Saturday, and then most of the day on Sunday. Hope to see some of you guys there!

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The first installment of this series seemed to generate a fair amount of interest – it seems like this subject is something that indie creators wanted to know about. So, I’ll continue with thoughts on some of the different types of agreements creators can make when putting together a project. My fellow creator Len N. Wallace (check out his book Love Buzz from Oni Press!) suggested that I also include (at some point) some discussion about provisions to watch for when you (as an indie writer or artist) are handed a contract by someone who wants to hire you. Contracts aren’t always transparent – in fact, they’re sometimes written in a way that’s intentionally confusing. That can leave a creator unaware of what they’ve really given away or agreed to do when they sign. Anyway, I think it’s a good idea, and I’ll definitely address that at some point.

But not today.

Today, I’d like to talk a bit about the way rights can be handled under creator contracts, with a particular focus on rights to do things beyond just creating or publishing the comic. Rights to “intellectual property” (a term that just means, in its very simplest terms, anything created, whether a work of art, a brand, a logo, an invention, etc. – yes, legal scholars out there, a more technical definition could be provided, but for the purposes of this blog, that’ll do) are often described using the “bundle of sticks” analogy. In other words, think of a bundle of sticks tied together with a string. Each stick represents a right to do something with a given piece of intellectual property (in this situation, let’s call it a comic book project.) One stick might represent the right to publish the book. Another might represent the right to be paid when and if the book makes money. Another stick could signify the right to take the comic book and make a second type of work based on the book (movie, TV show, t-shirt, etc.) Each of those sticks could be broken down into smaller sticks, too – for example, the right to publish the book could be divided into two sticks – one for publishing the book in the US and another for publishing the book overseas.

A good contract covers the entire bundle, so that no matter what happens with a project, everyone involved knows exactly who holds which sticks. Some sticks usually end up on one side of the contract, and some on the other. The nice thing about a good contract, too, is that it can be drafted in a way to take care of sticks that haven’t even been thought of yet. For example, in the old days, contracts didn’t cover digital media (electronic copies of works, like a PDF or an iphone version), because those didn’t exist yet. In the really old days, they didn’t even cover reprints or collected editions, because comics were thought of as disposable. The idea that anyone would collect these floppy little books printed for kids on cheap newsprint, or they would be in print for decades, wasn’t something anyone was thinking of – creators or publishers.

That situation has led to any number of headaches as new technology and industry practices came into use, requiring either renegotiation of contracts or, at worst, lawsuits. These days, most contracts include language licensing the part of the bundle of sticks covering “ancillary works” (that just means works beyond the original comic, that are based on it) in a way that covers evolution of tech and so on. The typical language looks something like this:

“The rights described herein are licensed to the licensee for use in connection with all derivative works, including electronic editions, adaptations for film, television, portable devices, merchandising and all other forms of exploitation, whether now in existence or hereinafter devised.”

It’s the underlined part that counts – it means that the rights being licensed cover EVERY way a project or book might be turned into something else going forward. You can see how this might be good or bad, depending on which side of the fence you’re on. Most contract language works this way – it’s just a tool, and it can be used for good or evil.

Next up (after New York Comicon this weekend, which should be AWESOME… I’ll be posting up my signing schedule shortly) will be a discussion of how long a contract should last, and how to get out of it. “Term and termination,” we’ll call it.

Let me know if this stops being useful!

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About the Site:

Charles Soule – writer.

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